PRAPAWONG (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of an 18-year-old Thai national who applied for a Subclass 500 (Student) visa to study English Preparation (ELICOS) in Australia. The applicant arrived in Australia with his family on a visitor visa, initially intending a short stay, but subsequently applied for a student visa. His parents also applied for Student Guardian visas, and his sister applied for her own Student visa, indicating a family intention to remain in Australia for an extended period. The delegate refused the visa application, and the applicant sought review by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant was a "genuine temporary entrant" as required by clause 500.212 of Schedule 2 to the Migration Regulations 1994. This required the Tribunal to assess if the applicant genuinely intended to stay in Australia temporarily, considering his circumstances, immigration history, and any other relevant matters, in accordance with Direction No. 69. The Tribunal also had to consider the intentions of the applicant's parents, as he was a minor at the time of the application.

The Tribunal reasoned that the applicant's circumstances did not satisfy the genuine temporary entrant criterion. It noted the significant deviation from his initial stated intention of a short visit, the fact that his entire immediate family was seeking to remain in Australia for an extended period, and the lack of evidence of prior English study in Thailand. The Tribunal also considered the parents' intention to remain in Australia for a significant period, absent from their business interests in Thailand, as a factor suggesting the student visa program might be used to circumvent migration program intentions. Despite the applicant's agent providing updated course offers and payment evidence, the Tribunal found these did not sufficiently address the concerns raised by the delegate regarding the applicant's genuine intention to temporarily stay in Australia.

Consequently, the Tribunal affirmed the delegate's decision not to grant the applicant a Subclass 500 (Student) visa, finding that the applicant did not meet the criteria for the visa.